Checklist · Privacy, Data Protection & Cyber

Serious invasion of privacy (statutory tort, Privacy Act Sch 2): claim assessment checklist

Checklist for assessing a claim, or a threatened claim, under the statutory tort for serious invasions of privacy: limitation, exemptions, each element, defences, remedies and the damages cap, forum, evidence and AI-specific scenarios such as deepfakes.

Kind
Checklist. Steps or checks to work through and tick off.
Where it applies
Australia
AI use
Yellow AI can help in set ways. A lawyer checks specific points before use.
Law stated as at
17 October 2026
Status
Maintained. Checked against the cited sources on 17 October 2026.
Version
1
Source
Written for this library

When to use it

Use at first instruction for a plaintiff or a defendant, and again before advising on prospects. Schedule 2 commenced on 10 June 2025 and has no express transitional provision, so treat it as applying to invasions from that date. For earlier conduct, or as alternatives, consider breach of confidence, defamation, an APP complaint and surveillance laws.

How AI may be used

AI may help build a chronology and an elements table that sets each fact against the statutory elements, factors and defences with document references. The lawyer assesses seriousness, the public-interest balance and prospects.

AI may

  • Build a chronology and an elements table in which each row cites the source document.
  • Calculate candidate limitation dates under clause 14 for the lawyer to check.
  • List possible defences and exemptions that the documents raise.

AI must not

  • Must not decide whether the invasion was "serious" or how the public-interest balance falls.
  • Must not process intimate images, health information or other sensitive material in a tool not approved for that data.
  • Must not generate, enhance or reproduce intimate or deepfake images, even to test the evidence.

The lawyer checks

  • Limitation dates are worked out from evidence of when the plaintiff became aware and when the invasion occurred.
  • No Part 3 exemption applies to the defendant, or the risk is identified.
  • The current damages cap is checked before advising on quantum.

Method: how the Green, Yellow and Red levels are decided. This is guidance for planning, not legal advice.

Authorities

Official form

Open the official form. Always use the current version from the issuer.

Read the full text

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